Filed 10/16/23 P. v. Canizales CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RAMON GERARDO 

CANIZALES,

Defendant and Appellant.

 B323141

 (Los Angeles County

 Super. Ct. No. GA110176)

APPEAL from an order of the Superior Court of 

Los Angeles County, Dorothy L. Shubin, Judge. Affirmed.

Christina J. Alvarez, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Kenneth C. Byrne, Supervising 

Deputy Attorney General, and Nancy Lii Ladner, Deputy 

Attorney General, for Plaintiff and Respondent.
2

INTRODUCTION

Ramon Canizales pleaded no contest to one count of fleeing 

or attempting to elude a pursuing peace officer while driving a 

vehicle in willful or wanton disregard for the safety of persons or 

property, in violation of Vehicle Code section 2800.2, 

subdivision (a). Pursuant to a negotiated plea agreement, the 

trial court sentenced Canizales to the upper term of three years, 

but stayed execution of the sentence. The trial court placed 

Canizales on formal probation for two years with various terms 

and conditions, one of which was that he enter a six-month 

residential treatment program. 

Two weeks later Canizales violated the terms of his 

probation by leaving the treatment program. Canizales admitted 

the violation, and the trial court terminated his probation and

imposed the previously suspended three-year sentence. 

Canizales argues that recent amendments to Penal Code 

section 1170, subdivision (b),1 which limit the trial court’s 

discretion to impose an upper-term sentence, apply retroactively 

to him and that he is entitled to resentencing under the current 

version of the statute. The People agree with Canizales’s first 

argument, but not the second, arguing Canizales agreed to the 

upper term of three years as part of his plea agreement. 

We affirm. 

1 Undesignated statutory references are to the Penal Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. Canizales Is Charged and Convicted

Los Angeles County Sheriff’s Deputy Brandon Tom 

observed Canizales driving a white car speeding through a 

residential area and running red lights. When Deputy Tom 

attempted to stop Canizales, Canizales drove onto the freeway at 

80 or 85 miles an hour, wove in and out of traffic, and crashed. 

After the crash, Canizales got out of his car and ran. Deputy 

Tom told Canizales to stop, but Canizales ignored his commands 

and ran away. Canizales later said he fled because he was on 

parole and driving on a suspended license. 

The People charged Canizales with one count of fleeing or 

attempting to elude a pursuing peace officer while driving a 

vehicle in willful or wanton disregard for the safety of persons or 

property (Veh. Code, § 2800.2, subd. (a)), and alleged he had a 

prior serious or violent felony conviction within the meaning of 

the three strikes law (§§ 667, subds. (b)-(j), 1170.12, 

subds. (a)-(d)). Canizales agreed to a negotiated disposition that 

called for him to plead no contest to the charge; the court to 

impose the upper term of three years, suspend execution of the 

sentence, and place Canizales on formal probation for two years; 

and the People to move to strike the prior serious or violent 

felony conviction allegation. At the plea hearing, the trial court 

confirmed Canizales understood he was agreeing to the upper 

term of three years in prison. The prosecutor, at the court’s 

direction, told Canizales that the court would sentence him to the 

upper term of three years in prison. The prosecutor stated: 

“That’s the maximum sentence for the charge, but [the court] will 

suspend execution of the sentence, meaning that you wouldn’t go 
4

to state prison right now. Instead, you will be placed on 

probation for two years. Do you understand that?” Canizales 

said, “Yes.” The court asked, “Is there anything you want to ask 

your attorney before the prosecutor takes your plea?” Canizales 

said, “No.” 

The court accepted Canizales’s plea, found him guilty, and 

pursuant to the parties’ agreement sentenced him to the upper 

term of three years, with execution of the sentence suspended. 

The court placed Canizales on probation and ordered him, among 

other things, to enter and complete a six-month residential drug 

treatment program (to be followed by recovery bridge housing 

and outpatient treatment); not to use or possess narcotics, 

alcohol, or marijuana; not to associate with known users or 

sellers of narcotics except in a valid rehabilitation program; and 

to avoid places where known users and sellers of narcotics and 

alcohol congregate. On the People’s motion, the court dismissed 

the allegation Canizales had a prior serious or violent felony 

conviction. 

B. Canizales Violates Probation, and the Trial Court 

Imposes the Suspended Sentence

Canizales violated the terms and conditions of his 

probation almost immediately by leaving the treatment center 

early. After he was arrested on a bench warrant and brought to 

court, he admitted the violation. Counsel for Canizales asked the 

court to give Canizales another opportunity to receive treatment. 

The court denied the request because Canizales left the program 

after only two weeks and did not maintain contact with his 

probation officer or the court. 
5

Turning to sentencing, counsel for Canizales argued that 

under the amendments to section 1170, subdivision (b), which 

require the trial court to impose a sentence that does not exceed 

the middle term unless the defendant stipulates to the facts 

supporting circumstances in aggravation or a jury finds those 

facts true beyond a reasonable doubt, the court could not 

sentence Canizales to the upper term. The prosecutor argued the 

court should impose the upper term because Canizales had 

agreed to it as part of the negotiated disposition: “I believe that 

the disposition that was reached before the current version of 

[section 1170, subdivision (b),] came into effect, the negotiated 

disposition, was for [a] probationary sentence with three years. 

He was actually sentenced to three years in state prison, but 

execution of the sentence was suspended, and he was placed on 

probation. So he already agreed to [the upper] term.” In 

addition, citing section 1170, subdivision (b)(4),2 the prosecutor 

argued in the alternative, “in an abundance of caution . . . in the 

2 Which states: “At least four days prior to the time set for 

imposition of judgment, either party or the victim, or the family 

of the victim if the victim is deceased, may submit a statement in 

aggravation or mitigation to dispute facts in the record or the 

probation officer’s report, or to present additional facts. The 

court may consider the record in the case, the probation officer’s 

report, other reports, including reports received pursuant to 

Section 1203.03, and statements in aggravation or mitigation 

submitted by the prosecution, the defendant, or the victim, or the 

family of the victim if the victim is deceased, and any further 

evidence introduced at the sentencing hearing.” Section 1203.03 

refers to a “diagnosis and recommendation concerning the 

disposition of defendant’s case” prepared for the court by the 

Department of Corrections and Rehabilitation. (§ 1203.03, 

subd. (b).)
6

event a different court says you have to,” the court should impose 

the upper term because, on the merits, the aggravating 

circumstances outweighed the mitigating circumstances. 

The trial court denied Canizales’s request to reinstate 

probation. The court stated Canizales had “a great opportunity 

to address” his substance abuse issues, but left the program in 

less than two weeks and failed to return to court or maintain 

contact with his probation officer until he was arrested on a

warrant. The court stated Canizales “had an opportunity to do 

the treatment and an opportunity in the months prior to being 

picked up on the warrant to come back to court, contact his 

lawyer, address this somehow, but didn’t do so. So the court is 

unwilling to reinstate probation.” 

The trial court stated it was “persuaded by the People’s 

analysis that the court can consider aggravating factors under 

[section 1170, subdivision (b)(4),] as well as mitigating factors, as 

well as prior history. And Mr. Canizales has a very significant 

history, was on parole at the time for what looks to be a serious 

robbery given the sentence that was imposed.” The court found 

as aggravating circumstances that Canizales had “prior 

convictions as an adult or adjudications of commissions of crimes 

as a juvenile” that were “numerous or of increasing seriousness,” 

that he had “served a prior prison term,” that he was on 

probation or parole when he committed the crime, and that his 

“prior performance on probation or parole was unsatisfactory.” 

(See Cal. Rules of Court, rule 4.421(b)(2)-(5).) As a mitigating 

circumstance, the court considered that Canizales attended 

several voluntary programs while in custody. Finding the 

aggravating factors outweighed the mitigating factors, the court 

sentenced Canizales to the upper term of three years. 
7

DISCUSSION

A. The Legislature Amends Section 1170, Subdivision (b)

Effective January 1, 2022, the Legislature amended 

section 1170, subdivision (b), to state: “(1) When a judgment of 

imprisonment is to be imposed and the statute specifies three 

possible terms, the court shall, in its sound discretion, order 

imposition of a sentence not to exceed the middle term, except as 

otherwise provided in paragraph (2). (2) The court may impose a 

sentence exceeding the middle term only when there are 

circumstances in aggravation of the crime that justify the 

imposition of a term of imprisonment exceeding the middle term, 

and the facts underlying those circumstances have been 

stipulated to by the defendant, or have been found true beyond a 

reasonable doubt at trial by the jury or by the judge in a court 

trial.” Section 1170, subdivision (b)(3), allows the court to 

“consider the defendant’s prior convictions in determining 

sentencing based on a certified record of conviction without 

submitting the prior convictions to a jury.” (See People v. Flowers

(2022) 81 Cal.App.5th 680, 685, review granted Oct. 12, 2022, 

S276237.) 

B. Any Error in Imposing the Upper Term Was Harmless

Canizales argues, the People concede, and we agree the 

Legislature’s amendments to section 1170, subdivision (b), were

an ameliorative change that applies retroactively to nonfinal 

judgments under In re Estrada (1965) 63 Cal.2d 740, 742 because 

they limit the trial court’s discretion to impose the upper term. 

(See People v. Lopez (2022) 78 Cal.App.5th 459, 465 [the 

“ameliorative amendments to section 1170, subdivision (b) apply 
8

retroactively to all cases not yet final as of January 1, 2022”]; 

People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [“the amended 

version of section 1170, subdivision (b) that became effective on 

January 1, 2022, applies retroactively in this case as an 

ameliorative change in the law applicable to all nonfinal 

convictions on appeal”]; see also People v. Esquivel (2021) 

11 Cal.5th 671, 674 [“‘The amendatory act imposing the lighter 

punishment can be applied constitutionally to acts committed 

before its passage provided the judgment convicting the 

defendant of the act is not final.’”].) Where the defendant is on 

probation with a suspended sentence and can appeal an order 

revoking probation, the case is not final for purposes of applying 

the ameliorative legislation. (Esquivel, at p. 673.) But that does 

not mean Canizales is necessarily entitled to a new sentencing 

hearing. (See People v. Stamps (2020) 9 Cal.5th 685, 700 

(Stamps) [“The Estrada rule only answers the question of 

whether an amended statute should be applied retroactively. 

It does not answer the question of how that statute should be 

applied.”].) 

“The Courts of Appeal are split on whether a 

defendant . . . who received the upper term under a plea 

agreement for a stipulated sentence is entitled to a remand under 

[the amendments to section 1170, subdivision (b)], and the issue 

is pending before the Supreme Court.”

3 (People v. Fox (2023) 

90 Cal.App.5th 826, 830; compare id. at pp. 833-834 [defendant is 

entitled to a remand that follows the procedure prescribed by the 

Supreme Court in Stamps] and People v. Todd (2023) 

88 Cal.App.5th 373, 381-382 [same], review granted Apr. 26, 

3 In People v. Mitchell (2022) 83 Cal.App.5th 1051, review 

granted Dec. 14, 2022, S277314.
9

2023, S279154 with People v. Sallee (2023) 88 Cal.App.5th 330, 

340-341 [defendant is not entitled to a remand], review granted 

Apr. 26, 2023, S278690 and People v. Mitchell (2022) 

83 Cal.App.5th 1051, 1057-1059 [same], review granted Dec. 14, 

2022, S277314.) Until the Supreme Court resolves the issue, and 

because counsel for Canizales at oral argument disclaimed any 

request for a Stamps-like remand, we follow Sallee and Mitchell

here.

“A plea agreement is, in essence, a contract between the 

defendant and the prosecutor to which the court consents to be 

bound. [Citation.] Should the court consider the plea bargain to 

be unacceptable, its remedy is to reject it, not to violate it, 

directly or indirectly. [Citation.] Once the court has accepted the

terms of the negotiated plea, [it] lacks jurisdiction to alter the 

terms of a plea bargain so that it becomes more favorable to a 

defendant unless, of course, the parties agree.” (People v. 

Prudholme (2023) 14 Cal.5th 961, 973, internal quotation marks 

omitted; see Stamps, supra, 9 Cal.5th at p. 701.) “When a guilty 

[or no contest] plea is entered in exchange for specified benefits 

such as the dismissal of other counts or an agreed maximum 

punishment, both parties, including the state, must abide by the 

terms of the agreement.” (People v. Segura (2008) 44 Cal.4th 921, 

930-931; see People v. Wright (2019) 31 Cal.App.5th 749, 754.) 

When the court approves a plea agreement, the court must 

impose the sentence the agreement specifies. (Stamps, at p. 701; 

see § 1192.5, subd. (b) [when a “plea is accepted by the 

prosecuting attorney in open court and is approved by the court,

. . . the court may not proceed as to the plea other than as 

specified in the plea”]; People v. Pixley (2022) 75 Cal.App.5th 

1002, 1005 [“‘When a defendant who enters into a plea also 
10

agrees to a stipulated sentence, upon accepting the plea, the trial 

court may not proceed as to the plea other than as specified in the 

plea.’”]; People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047

[“a judge who has accepted a plea bargain is bound to impose a 

sentence within the limits of that bargain”].) 

Thus, had the court at the probation violation hearing 

sentenced Canalizes to the upper term of three years based on

the plea agreement, the court would not have exercised any 

discretion in selecting the lower, middle, or upper term. (See 

People v. Mitchell, supra, 83 Cal.App.5th at pp. 1057-1058 [when 

the trial court sentences a defendant pursuant to a negotiated

plea agreement, the court has “no opportunity to exercise any 

discretion in deciding whether the imposition of the upper, 

middle, or lower term would best serve ‘the interests of justice’”], 

review granted; People v. Brooks (2020) 58 Cal.App.5th 1099, 

1109 [“‘when a trial court sentences a defendant who has agreed 

to a stipulated sentence for a term of years, the trial court 

exercises no discretion to decide between an upper, middle and 

lower term and may not consider factors in mitigation and 

aggravation’”].) Rather, the court would have imposed the 

sentence the parties specified in the negotiated plea agreement. 

(See People v. Prudholme, supra, 14 Cal.5th at p. 971; People v. 

King (2020) 52 Cal.App.5th 783, 790-791; People v. Segura, supra, 

44 Cal.4th at p. 931.) Had the trial court done that, Canizales 

would not have been entitled to resentencing under section 1170, 

subdivision (b). As the court stated in People v. Sallee, supra, 

88 Cal.App.5th 330, review granted: “Defendant agreed to a 

stipulated sentence pursuant to a negotiated plea agreement, and 

the trial court approved the agreement and imposed the agreedupon sentence. The trial court did not exercise discretion to 
11

choose an upper, middle, or lower determinate term based on 

factors in mitigation and aggravation. Nor could the court 

exercise discretion to choose an alternative term based on factors 

in mitigation and aggravation without effectively withdrawing its 

approval of the plea. The trial court therefore did not, and could 

not, exercise discretion under section 1170, subdivision (b). 

Under the plain language of the statute, the limitations on the 

court’s sentencing discretion set forth in section 1170, 

subdivision (b), are inapplicable in this context.” (Sallee, at 

p. 340.) 

But the reason the trial court gave for resentencing

Canizales to the upper term was not that the court-approved plea 

agreement called for it. Instead, the court considered various

aggravating and mitigating circumstances in California Rules of 

Court, rules 4.421 and 4.423, found the aggravating factors 

outweighed the mitigating factors, and purported to (again) select 

the upper term of three years. That is exactly the kind of judicial 

factfinding section 1170, subdivision (b), prohibits. (See People v. 

Gaines (2023) 93 Cal.App.5th 91, 142 [under section 1170, 

subdivision (b), an “upper term may be imposed when justified by 

aggravating circumstances and the facts underlying those 

circumstances have been stipulated to by the defendant or found 

true by a jury or by the judge in a court trial”]; People v. Govan

(2023) 91 Cal.App.5th 1015, 1020, fn. 2 [“Under the amendments

[to section 1170, subdivision (b)], the trial court must impose a 

sentence that does not exceed the middle term unless the 

defendant stipulates to the facts supporting the circumstances in 

aggravation, a jury or a judge in a court trial finds the 

aggravating facts true beyond a reasonable doubt, or a prior 

conviction supports imposition of the upper term.”]; People v. 
12

Dunn (2022) 81 Cal.App.5th 394, 405 [“as section 1170 requires 

all aggravating circumstances relied upon by the trial court to 

meet the requirements of section 1170, subdivision (b)(2) or (3), 

unless imposition of the upper term . . . was harmless, the 

sentence must be vacated and the matter must be remanded to 

the trial court for resentencing in compliance with section 1170, 

subdivision (b)”], review granted Oct. 12, 2022, S275655.) That 

was error.

The trial court’s error, however, was harmless (under any 

standard)4 because the court had already sentenced Canizales to 

the upper term and suspended execution of that sentence. (See 

People v. Falcon (2023) 92 Cal.App.5th 911, 927 [“In the context 

of upper term sentences imposed under section 1170, former 

subdivision (b), most courts have employed some type of harmless 

error analysis to determine whether resentencing is unnecessary 

under the new law.”], review granted Sept. 13, 2023, S281252; 

People v. Lopez, supra, 78 Cal.App.5th at p. 465 [“where a 

sentencing factor must be found true by a jury beyond a 

reasonable doubt and the court fails to submit that factor to the 

jury, the error in the court’s reliance on that fact may be subject 

to harmless error review as to whether the lack of a finding by 

the jury was prejudicial”].) Once Canizales admitted he violated 

probation and the court declined to reinstate probation, the court 

had no discretion to impose any sentence other than the threeyear upper term. “When the initial sentencing court imposes a 

4 The Supreme Court has granted review in People v. Lynch

(May 27, 2022, C094174) [nonpub. opn.], review granted Aug. 10, 

2022, S274942, to decide what standard of prejudice a reviewing 

court should apply when determining whether to remand a case 

for resentencing under amended section 1170, subdivision (b). 
13

state prison sentence but stays execution of the sentencing 

pending completion of probation, on a subsequent violation of 

probation the court does not have discretion to change the 

previously indicated sentence.” (People v. Stuckey (2009) 

175 Cal.App.4th 898, 916; see People v. Scott (2014) 58 Cal.4th 

1415, 1422 [“a trial court does not have power to modify a 

previously imposed and suspended sentence when it later revokes 

probation and orders the sentence executed”]; People v. Howard

(1997) 16 Cal.4th 1081, 1088 [“[o]n revocation of probation, if the 

court previously had imposed sentence, the sentencing judge 

must order that exact sentence into effect”]; People v. Smith

(2019) 35 Cal.App.5th 399, 404 [“A court that has previously 

imposed but suspended the execution of a sentence is bound to 

impose that very same sentence.”].) If we were to remand the 

case for resentencing, the court would have to impose the upper 

term again.

Moreover, when Canizales agreed to the plea, he agreed to 

be bound by it and not to subsequently challenge the existence of 

any fact necessary to support his conviction and sentence. (See 

People v. Hester (2000) 22 Cal.4th 290, 295 [“[w]here the 

defendants have pleaded guilty in return for a specified sentence, 

appellate courts will not find error even though the trial court 

acted in excess of jurisdiction in reaching that figure, so long as 

the trial court did not lack fundamental jurisdiction”]; Cal. Rules 

of Court, rule 4.412(a) [“[i]t is an adequate reason for a sentence 

or other disposition that the defendant, personally and by 

counsel, has expressed agreement that it be imposed and the 

prosecuting attorney has not expressed an objection to it”].) 

By pleading no contest, Canizales avoided the potential of 

receiving a longer prison term under the three strikes law and 
14

(initially) avoided serving any time in prison when the court 

placed him on probation. Where, as here, the “‘defendant

maintains that the trial court’s sentence violates rules which 

would have required the imposition of a more lenient sentence, 

yet the defendant avoided a potentially harsher sentence by 

entering into the plea bargain, it may be implied that the 

defendant waived any rights under such rules by choosing to 

accept the plea bargain.’” (People v. Jones (2013) 217 Cal.App.4th 

735, 744; see People v. Buttram (2003) 30 Cal.4th 773, 776

[“‘defendants are estopped from complaining of sentences to 

which they agreed’”].)

DISPOSITION

The judgment is affirmed.

SEGAL, J. 

We concur: 

PERLUSS, P. J. MARTINEZ, J.